Intestate Succession As Per The Hindu Succession Act,1956
March 27, 2013 21 Comments
The Hindu Succession Act,1956 applies if the intestate is Hindu,Buddhist,Jain or Sikh but doesn’t automatically include scheduled tribes.It also includes legitimate or illegitimate children,if one of his/her parents is Hindu,Buddhist,Jain or Sikh.It also includes converts and reconverts to these religions.
When a Hindu male dies intestate i.e.without a will, and has not married a non-Hindu,the right of succession first devolves upon the Class 1 heirs, if any,shown in the diagram to the left. If even one such heir exists, all other relatives who do not fall within this category are excluded automatically.If there are several Class 1 heirs, then there are certain rules as to how they will share the properties amongst themselves.
The widow (or widows), mother and each of the children (son or daughter, the law makes no distinction) take equal shares. Where one or more of such sons or daughters is no more, then, the Class 1 heirs in that branch will all jointly stand in the place left behind by such deceased son or daughter. To understand this rule,imagine a tree. It has two branches. Each branch has two twigs. Now, assume that the main trunk of the tree which we have taken as an example, is the deceased Hindu male whose property we are now attempting to divide. The Hindu male has two children who are represented by the two branches. If both are alive, both get equal shares, that is to say, half and half. If, however, one child is no more, leaving behind two children of his own (the two twigs in our example), then, each such grandchild will not share equally with the surviving child of the deceased Hindu male, but will jointly take whatever, their father or mother would have been entitled to, had their father or mother been alive.So in our example, the two twigs would get only the same share as one branch, and would not share in equal thirds with the surviving branch.
The law makes no distinction between natural and adopted children.
If the widow of a pre-deceased son or the widow of a pre-deceased son of a pre-deceased son has remarried, she is not entitled to receive the inheritance.
In case no Class-I heirs are available,Class-II heirs ,in the diagram below are considered.Among the heirs specified in Class II, those in the preceding entry take the property simultaneously and in exclusion to those in the subsequent entries.
In case of no Class-I or Class-II heirs being available,the property then goes to first,the deceased’sagnates or relatives through male lineage and if still no heir is available, his cognates, or any relative through the lineage of males or females.Two people are called Agnates of each other if they are related (by blood or by adoption) wholly through males. Agnates could be males or females. Thus, a father’s brother’s daughter is an Agnate but a father’s sister’s son is not an Agnate because the relation is not entirely through males. On the other hand, two people are called Cognates of each other if they are related (by blood or by adoption) but not wholly through males. Cognates could be males or females. A mother’s brother’s daughter or a father’s sister’s son is a Cognate because the relationship is not wholly through males. The relationship of Agnates and Cognates does not extend to those relationships which arise because of marriage. Among two or more Agnates/ Cognates, the order of succession is that the heir who has fewer or no degrees of ascent is preferred. If the degrees are same then those who have fewer or no degrees of descent are preferred.
If someone leaves behind neither Class 1, nor Class 2 heirs, nor has any agnates, nor any cognates his entire property lapses to the Government. This is called “escheat”.
The property of a Hindu female dying intestate i.e.without a will, devolves in the following order:
(a) Firstly, upon her sons and daughters (including the children of any pre-deceased children) and husband;
(b) Secondly, upon the heirs of her husband;
(c) Thirdly, upon her parents
(d) Fourthly, upon the heirs of her father
(e) Fifthly, upon the heirs of her mother
The order of succession is in the order given above. Thus, the heirs in the preceding entry take the property simultaneously and in exclusion to all others. Thus, the children and husband of a Hindu female take the property in preference to all other heirs specified. The order of devolution as regards her husband’s heirs would be as if it were her husband’s property and he had died intestate. The same principle would apply as regards devolution on her father’s heirs.
5.3 S.15(2) carves out an exception to the order of succession specified above. In case of an Hindu female dying intestate and without any issue or any children or any predeceased children, any property inherited by her from her parents shall not devolve upon her husband or his heirs but revert to her natal family.Similarly, in case a Hindu female dies intestate and without any issue or any children or any predeceased children, then any property inherited by her from her husband or her father-in-law devolves upon the heirs of her husband. Thus, property inherited from her husband would not devolve upon her father or his heirs.
Both the above provisions of s.15(2) would only apply if the female dies without leaving behind any children or children of any predeceased children. If she has left behind any children, then they would take the property in preference to all other heirs. Further, the provisions only apply to “inherited” property and not property acquired by way of a will or under a gift.